Opinion
2021-05458 Index 656019/17
10-12-2021
Sreenivasa Gade, et al., Plaintiffs-Respondents, v. David Carmili, Defendant-Appellant, O2 Electronics, Inc., Defendant. Appeal No. 14347-14348 Case Nos. 2021-00210, 2019-3044
The Law Firm of Elias C. Schwartz, PLLC, New York (Sarah R. Gitomer of counsel), for appellant. Galgano Sharp LLP, White Plains (Eric R. Sharp of counsel), for respondents.
The Law Firm of Elias C. Schwartz, PLLC, New York (Sarah R. Gitomer of counsel), for appellant.
Galgano Sharp LLP, White Plains (Eric R. Sharp of counsel), for respondents.
Before: Renwick, J.P., Kern, Oing, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about August 11, 2020, which, to the extent appealed from, denied defendant Carmili's motion to dismiss the breach of contract and unjust enrichment causes of action in the amended complaint as against him, unanimously affirmed, with costs. Order, same court and Justice, entered February 20, 2019, to the extent it granted plaintiffs' motion to amend the complaint, unanimously affirmed, and appeal therefrom to the extent it denied defendant's motion to dismiss the original complaint dismissed, without costs, as moot.
Plaintiffs seek repayment from defendant of a loan they made to him by sending funds on his behalf to a company in which he wished to invest those funds.
Contrary to defendant's contention, the fact that the funds were sent directly to the company does not prove that there was no contract between him and plaintiffs (see Alloy Advisory, LLC v 503 W. 33rd St. Assoc., Inc., 195 A.D.3d 436 [1st Dept 2021]).
Nor does the fact that defendant did not receive the funds negate any element of the cause of action for unjust enrichment (s ee Georgia Malone & Co., Inc. v Rieder, 19 N.Y.3d 511, 516 [2012]). The allegations of the complaint establish that defendant received the full benefit of the funds loaned by plaintiffs.
Neither res judicata nor collateral estoppel applies to the Canadian proceeding cited by defendant, as there is no theory under which plaintiffs were in privity with any party to that proceeding (Buechel v Bain, 97 N.Y.2d 295, 304 [2001], cert denied 535 U.S. 1096 [2002]).
Given that the amended complaint superseded the original complaint, the appeal taken from the part of the February 20, 2019 order that denied defendant's motion to dismiss the original complaint is dismissed as moot (s ee MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 A.D.3d 287, 293 n 5 [1st Dept 2011]; 100 Hudson Tenants Corp. v Laber, 98 A.D.2d 692 [1st Dept 1983]). In opposing plaintiffs' motion to amend the complaint, defendant failed to show that amendment would surprise or prejudice him (see Centrifugal Assoc. v Highland Metal Indus., 193 A.D.2d 385 [1st Dept 1993]).